Senate Bill's Familiar Calculus: Enforcement for Citizenship

The U.S. Senate yesterday brought the country more closely to the passage of an immigration reform bill than at any time in a generation. The legislation, which passed with full support of Democrats and 14 Republican votes, would provide a route to citizenship to millions of undocumented immigrants, rework the legal immigration system and expand enforcement of border and workplace immigration laws.

The legislation is a product of a decade-long political trade. Liberals have demanded a clear route to citizenship for undocumented immigrants and Republicans have said that before supporting any path to legalization, the border must first be secure. For 20 years, Democrats have agreed to expand the enforcement apparatus, hoping it'd be enough to bring Republicans on board. Senate Republicans, 14 of them at least, finally agreed to that trade off yesterday. The legislation includes unparalleled levels of new enforcement.

But as has been the case for years, it's not clear the strategy will work in the House, which now must produce its own bill.

"For years, all focus of the federal government when it comes to immigration has been on deportation, removal, fences, border control, get tough on immigrants," says Kevin Johnson, dean of the University of California, Davis law school and an immigration scholar. "That's been the only thing Congress and four administrations have done for two decades."

For the Obama administration, the calculus was clear: act tough on immigrants and get Republicans on board for a broader reform that includes citizenship.

"[W]e have strengthened border security beyond what many believed was possible," Obama said in a 2011 speech in El Paso. "We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement."

"[T]he question is whether those in Congress who previously walked away in the name of enforcement," Obama said, "are now ready to come back to the table and finish the work that we've started."

At the time, Republicans did not come back to the table. They rejected the DREAM Act and refused to move forward on immigration reform. Though the Obama administration doubled the number of border agents to 20,000 and now deports an historic 400,000 people a year, the GOP remained entrenched.

The Senate bill marks a major turning point. Its citizenship provisions are, by and large, what many immigrant rights advocates and congressional Democrats have been fighting to get for years. The path is a long one--at least 13 years--and filled with high costs. It bars many people with minor criminal convictions. It's nonetheless a clear path. It also includes an expedited citizenship route for DREAM Act eligible immigrants--people who were brought to the U.S. as children and meet a stringent set of prerequisites--and for agricultural workers, and it crucially provides a means for deportees who still have families in the U.S. to apply to return.

For Democrats, what's most important about the citizenship provisions is that they are not encumbered by a set of impossible-to-meet border-security triggers, as many Republicans want. Those triggers, which Senate Republicans tried to inject into the bill, would have put Congress in a position to say whether the border is secure enough before any unauthorized immigrants can become citizens.

But to pull in Republican votes without those impossible triggers, Democratic leadership in the Senate agreed to a major injection of new enforcement funding that will once again militarize the border beyond what anyone thought possible. Earlier this week, two Republicans introduced an amendment to double the number of agents on the border, bringing the number to 40,000, and to build an additional 350 miles of walls and fences between the U.S. and Mexico. The billions of dollars of new funding also buys Blackhawk helicopters and drones.

"The amendment took us by surprise," says Marielena Hincapié, the director of the National Immigration Law Center, which is positioned on the left side of the immigration reform advocacy coalition in Washington. "We saw a sudden and aggressive militarization on an already militarized border in a way we didn't expect."

It was a bitter pill to swallow, many said, but for many advocates and Democrats, worth the trade to gain the 14 Republican votes. New York Democrat Sen. Chuck Schumer argued that if the bill could garner 70 votes in the Senate, it would compel the House to take up the bill and vote on it directly.

"They are designed to make more palatable a compromise to some conservatives who are scared of citizenship," Johnson says.

But as the bill moves to the House, Republicans in the lower chamber say they won't take up the Senate bill and will legislate their own reform that's unlikely to include citizenship. "We're going to go home for the recess next week and listen to our constituents," House Speaker John Boehner said yesterday, Fox reports. "And when we get back, we're going to ... have a discussion about the way forward."

The risk is that this way forward will look like the last 20 years, with the enforcement provisions from the Senate setting yet another bipartisan enforcement goalpost without ever getting to a path to citizenship.

"What all this demonstrates, among other things, is that so-called security is a bottomless pit," says Joseph Nevins, a Vassar College professor and author of Operation Gatekeeper, on the Clinton administration's massive investment in border security. "Of course, it is also a very dangerous pit."